Tuesday, March 11, 2014

What Can We Do about a Non-compliant Congress?

Physicians know all about non-compliance. Sometimes, no matter what they do, even when they do everything right, patients don’t heed their advice, and the outcome is poor. And sometimes, even when the physician and the patient both do everything correctly, things inexplicably go wrong, and the patient experiences a bad outcome. Some things are just out of the doctor’s and the patient’s control. This concern—that bad outcomes happen even when a doctor provides the best possible care—is one of the major reasons why many physicians distrust pay-for-performance and public reporting.

Yet even when things don’t go right and it appears that there is nothing that the physician could or should have done differently, doctors are always striving to figure out a better way, so that next time, just maybe, the outcome will be better for the patient.

While the stakes aren’t as high, people like me, whose job is to get the best possible outcome out of Congress, can sympathize with physicians. Sometimes, Congress is non-compliant and won’t heed our advice, even when we do everything right. Sometimes, even when we seem to be doing everything correctly and even when Congress appears to be ready to comply, something goes wrong, and the legislative outcome is poor. Some things appear to be out of our control, no matter what we do. Yet when things don’t go right and it appears that there is nothing that could or should have been done differently, we are always striving to figure out a better way, so that next time, just maybe, the legislative outcome will be better.

The current situation with legislation to repeal the Medicare SGR formula is a case in point. For 11 years now, we have had a non-compliant Congress: no matter what ACP, or AMA, or the rest of organized medicine has said or done, Congress has refused to comply with our efforts to get them to repeal the SGR. There is always an excuse (just like patients can come up with all kinds of excuses, say, on why they haven’t lost weight or quit smoking). SGR repeal is too expensive. We know it is bad for the country, but we don’t know what to replace it with. It is always someone else’s fault (Republicans blaming Democrats, Democrats blaming Republicans, the House blaming the Senate, the Senate blaming the House, both sides blaming the clock—“we don’t have enough time.” And Congress loves to put the blame directly on physicians, and their professional organizations: if only you would “come to the table” and help us craft a solution, we could get it done. If only doctors were unified, instead of splitting into different camps of surgeons versus primary care, specialty societies versus the AMA, state medical societies versus the national societies, conservative doctors versus liberal doctors, we could get it done. If only we heard from more doctors, we could get it done. Next time, they say, we promise to do better, if you doctors would get your act together and help us.

And to be fair, the medical profession has not always been unified on the SGR—although everyone agrees on getting rid of it, we haven’t always agreed on a replacement. We haven’t always come constructively to the table.

This year has been different, though. The medical profession has come to the table and helped Congress develop a bipartisan, bicameral bill, the SGR Repeal and Medicare Provider Payment Modernization Act of 2014. The medical profession has been unified: over 600 physician membership organizations, encompassing all specialties and states, recently urged Congress to repeal the SGR. And Congress itself has worked (up until now) on a bipartisan and bicameral basis to come up with a solution, knowing that the only way SGR repeal legislation is going to pass is if it has the support of both the House and Senate, Republicans and Democrats, and has the unified support of doctors.

Yet even though it has seemed like everything was going in the right direction, Congress appears to be on the verge of falling back into its old partisan ways, endangering SGR repeal. Later this week, the House of Representatives is expected to vote on the SGR Repeal and Medicare Provider Modernization Act, and it is likely to pass the House. But this vote is not going to advance the chances of getting SGR repeal because the House leadership chose to pay for SGR repeal by delaying the Affordable Care Act’s requirement that people buy qualified coverage or pay a tax penalty (without the tax penalty, fewer people would get covered, so the government’s cost of providing coverage would decrease, freeing up money for SGR repeal). Because tying SGR repeal to gutting a key provision of the Affordable Care Act is a non-starter with Senate and House Democrats and with the White House, the House leadership’s decision to link the two means certain rejection of the SGR repeal and replacement bill by the Senate. Over on the Senate side, Majority Leader Reid has been coy about how or even if he plans to move the bill to a floor vote, but if he chooses to pay for it in ways, or links it to non-related partisan priorities, that are unacceptable to House (and Senate) Republicans, it will mean certain rejection by the House.

The only way to change the dynamic that has thwarted SGR repeal for 11 years now is for Congress to mirror the process that produced agreement on the policies in the SGR repeal and replacement bill and resume working on a bipartisan, bicameral basis to come up with ways to pay for it that both parties, both chambers, and President Obama can support. This is how ACP put it in a statement released on Friday:

"After many months of hard work, the congressional committees with jurisdiction over Medicare have reached bipartisan agreement on a bill to repeal the broken Sustainable Growth Rate (SGR) formula, the SGR Repeal and Medicare Provider Payment Modernization Act of 2014 (H.R. 4015/S. 2000). Yet, this historic bipartisan opportunity to eliminate the AGR, once and for all, is at risk of being upended because of partisan disagreements on how to address the budget impact of SGR repeal and on other policies unrelated to the SGR itself. If either political party or chamber decides on its own to attach provisions to the bill that are unacceptable to the other, it would kill any chance for SGR repeal.

Congress knows that it is counterproductive for either the House or the Senate, Republicans or Democrats, to tie the bipartisan bicameral SGR repeal bill to other policies that do not have the bipartisan support needed to pass both chambers, and be signed into law by the President.

Today, we call on House and Senate leadership to immediately engage in a bipartisan process to reach bipartisan agreement on a budgetary solution that can pass both the House and the Senate, mirroring the bipartisan, bicameral process that produced agreement on the SGR replacement policies contained in H.R. 4015 and S. 2000, as agreed to by the committees. We believe that such a bipartisan agreement can and must be reached in time for Congress to pass this legislation, before the current patch expires on April 1.

We cannot support linking SGR repeal to changes in current law that will result in fewer people getting health insurance coverage."

In the meantime, organized medicine needs to stay united, to not be drawn into a [renewed] partisan fight over how to pay for SGR repeal and replacement, to continue to constructively engage in the process, to continue to keep the pressure on Congress, and to continue to do everything we can to get the best possible legislative outcome. We cannot guarantee that Congress will comply. And if Congress does not enact SGR repeal and replacement this year, despite our best efforts, we will need to reassess, like we always do, if there is anything that can be done next time to get a better outcome. But we can't throw in the towel over the latest SGR repeal setback, just like doctors don't throw in the towel when their patients have setbacks and don't comply with their advice.

10 comments
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Well stated. But the clock is ticking, everyone is home on recess, and I have not seen any action in the week since you wrote that would lead me to be optimistic about a last-second compromise.

I would strongly suggest that the largest physician stakeholder organizations devise and disseminate a strategy that membership can implement in the coming week to coax the powers that be in Congress to not give up on this. We need leaders in Congress to step up and do their jobs. We need to convey to them that organized medicine will have their backs if they go out on a limb with provocative off-sets / pay-fors.

And we need to make it clear that we cannot continue to support the status quo. It is hard to imagine that we will come this close again anytime soon.

I've said it long ago. Congress has the medical profession right where they want us. Over a barrel and forced to succumb to every whim and fancy of theirs.Why in heavens name would they give this up?One wonders with AMA and ACP etc support of universal health care and ACA with no such insistence of a fix for a uniquely unifying issue, whether these organizations also are part of the establishment that like it so, as perhaps they feel it keeps them relevant. If not, why was this not addressed as a pre- condition for the professions acceptance of this law. Either weak leadership or incompetence you choose. Check and mate. The profession is the one that is screwed once again.

You are not going to get an SGR fix. This is why our group now works for a large group. So... I decided although conflicted about belonging to the ACP that tonight since it is my only representation and a good educational opportunity...that I would pay my dues. Well golly , gee, I log on and click on dues only to get a 404 error , no email contact and then I see a link to request reinstatement. Really , are you kidding. You folks need to EARN members not the other way around. This is the kind of elite arrogance that causes the ACP to be over represented by physicians in academics and few in real practices. email me if you would like me to pay may dues...junebug3882@me.com Linda Ray MD

One could also ask what can we do about an administration that does not enforce the various aspects of a law that they heralded as a great accomplishment.Another question is why ACP and other organizations that supported and continue to support ACA do not speak out about the numerous delays and exemptions to the legislation that ACP touts as providing health care to "nearly everyone" and furthering social justice.

Congress is frustrating. We had two good legislative years. A lot of progress was made when Barak Obama was President and Harry Reid was the Senate Majority Leader and Nancy Pelosi was the House Speaker. They moved through important legislation. But elections are cyclical. When more people vote, Democrats win. But the Fox News viewers vote consistently in all elections, including the midterms, and so in midterm elections the Republicans win. And the Republicans won when it mattered for redistricting purposes, and they won at the statehouse levels, also where redistricting is done.

So citizens of Washington DC are not at all represented in Congress. Yet they pay taxes. Rural areas are overly powerful with small states having disproportionate representation in the Senate. Two Senators represent 36 million Californians. And two Senators also represent less than a million people who live in Wyoming.

Cities are under represented. African Americans are under represented. Three women on the Supreme Court were seemingly the only one's who saw the Hobby Lobby case as an equal right's issue.There are too few women in Congress. Fewer than 100 in 535 legislative seats.We have only once had two African Americans in the Senate at the same time. Mostly, just one.

We need legislative reform.

Not being able to pass an SGR fix is nothing.

If we want the public to believe we care, and to fight for our concerns -- then we should fight for them.We should stand up for a Surgeon General Candidate who recognizes that maybe bullets aren't good for us.We should publicly stand with shooting victims and advocate for gun control as a public health issue.It just is.We should use our voice to fight against ignorance about vaccines. Why should we stand by and allow Measles to make a comeback.Why do we seen annual epidemics of Pertussis?

Stop the drumbeat of the SGR fix as if that is all that matters to us in organized medicine.

If we stand for public health and if we stand with science...we will get support for our SGR issue.Maybe we'll even get support for tort reform some day, if we come up with an honest alternative about patient safety.

Harrison,We should go for SGR because is is perhaps one of the few things that unites medicine. Its imposition 16 yrs ago sowed the seeds for the destruction of private practice medicine and it is blatantly anti doctor as it is a form of price control that was not simultaneously imposed on Medicare A and other aspects of the program. The result is that entities that get most of their revenue from Medicare A and other areas are swallowing medical practices whole. They are not more efficient, they are not better, they do not have better customer service, what they have is deeper pockets and better reimbursement for the same services. In summary they have a lobby that actually advocates in their interests.

As to you other points, "good legislative years" is a matter of perspective, Barack Obama's first two years are not progress, they were unilateralism and the ACA epitomizes that time which I will remind you was also a time of great fear which was used to push an entirely unrelated bill. The issue to be dealt with was "too big to fail" instead we got big gov't healthcare. It is precisely because the nation was so deeply divided on this issue and the legitimate concerns of arguably now a majority of people were not addressed that we have the current mess and it will not just fade away as you and the ACP leadership hope. This is a proverbial can of worms that was forcibly opened and we now have to live with that.

If someone is so lazy as not to vote, why blame those that do? Another perspective is that not voting is a form of protest and perhaps those that do not are not necessarily enthralled by big government solutions put forth by democrats even as they disagree with republicans. That is my take on it anyway.

Rural areas are the foundation on which this country was built from. The values they hold are what got us where we are. We cannot steer away from them too long and remain strong.

People can choose for themselves on issues like personal freedoms. I am not of the view that we know better and must educate them to a point of view. That perspective seems unique to liberals.

PCPI don't agree with you but I appreciate your comments and perspective.If you are in Orlando next week I would be happy to buy you a 'way too expensive' coffee and listen more.I'll be there all week, since the ABIM wants me to prove I can pass a standardized test this year.I won't let on the fact that I haven't tried to do a standardized test for almost ten years and so this actually makes me a bit nervous.Oh, and the HMO's here in California require board certification as a condition for membership. So for my business model the ABIM's rules are not really an option for me.

Yes there are things wrong with the business of medicine.And the SGR would bankrupt me if Congress ever just let a 30% cut go through.

But I'm sure we will continue to disagree on a lot of issues. I'm also sure we agree on more than we disagree on.